Zombie Judgments: Lack of Creditor's Due Diligence is a Defense to a Revival a Dormant Judgment

Suson

In a nutshell:

A debt collector is required to exercise diligence in attempting to revive a dormant judgment. A trial court may deny a timely filed application for a writ of scire facias when the writ is not issued within two years and the creditor has not shown due diligence in prosecuting its case to revive the judgment.

Here’s Suson's story:

More than fifteen years ago Suson was sued on a credit card debt resulting in a $6,000 judgment. The creditor did nothing to collect on the judgment for more than ten years. Unless a writ of execution is issued within ten years, a judgment in Texas becomes dormant (i.e. uncollectible) after ten years. If a dormant judgment is not revived within two years from the date it becomes dormant, the judgment expires, cannot be enforced or collected upon, and can never be revived.

The process to revive a judgment in Texas is either by scire facias or an action on a debt. (Creditors will often opt for the scire facias route because on its face it seems easier and cheaper.) The creditor applied for a writ of scire facias to revive the judgment during the two years. However, it took no further action and no writ was issued within two years. The creditor also failed to show that it had even served the application on Suson within the two years. On the contrary, the only evidence before the trial court was that Suson was served notice of the application more than twenty months after the two years had passed. The creditor did not file a response disputing the service date or presenting any evidence that it prosecuted its application with due diligence.

Suson argued that while the application was timely, the writ was not issued timely and the creditor had not demonstrated that it prosecuted the case with diligence. The trial court denied the creditor’s application to revive the judgment stating “It’s not simply that you get to file the writ and wait forever to do something on it.”

The creditor appealed arguing a single point: that the statutory requirements to obtain a writ of scire facias were met by the mere timely filing of the application and that no further procedural parameters are set or required by the statute. The 2nd Court of Appeal affirmed the trial court’s ruling. The Court held that the creditor is required to exercise diligence in when reviving a dormant judgment, and that because the record showed a “decided lack of diligence, the trial court was within its rights to vacate the writ.”

View opinionĀ here.

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